After reading Eric Crampton’s superb piece on solving the Auckland housing crisis, a few commenters here were asking about the Coming to the Nuisance doctrine, mentioned by Eric, that was a feature of common law jurisdictions until partially killed by statute, and all-but euthanased by the judiciary. (See for example Sturges v Bridgman – the case of a confectioner and a busybody doctor.) It lives on, partially, in Lord Denning’s famous dissenting opinion against a couple bewailing cricket balls coming through their greenhouse after moving next to a cricket oval. Conveniently, there are a few posts already written to help you read up on the doctrine:
- “The Coming to the Nuisance Doctrine is the only objective means of determining who has the right to continue using his property in the event of a nuisance. If zoning is to be replaced, therefore, it must be replaced with the Coming to the Nuisance doctrine.”
The "Coming to the Nuisance" doctrine: The antidote to zoning – CAPMAG
- “… it’s practical to remove the RMA overnight… Here’s how it could be done. FIRST, ENACT A CODIFICATION of basic common law principles such as the Coming to the Nuisance Doctrine and rights to light and air and the like.
“Second, register on all land titles (as voluntary restrictive covenants) the basic “no bullshit” provisions of District Plans (stuff like height-to-boundary rules, density requirements and the like).
“Next, and this will take a little more time, insist that councils set up a ‘Small Consents Tribunals…”
What would 'Party X' do about the environment? - PART 3: Small Consents
- “What sort of person moves next door to a chicken farm and then complains about the smell?
The sort of people who live in Inglewood in Taranaki perhaps, who come to the nuisance and then seek to make windfall profits from someone else's destruction.”
"What nuisance?" And who came to it?
- What I’m going to propose here is another simple modification to law that would allow New Zealanders to once again repair to the common law protections that “The Hammer” had made possible. In particular, the codification of the common law principle of Coming to the Nuisance (seen in palimpsest in point three above), which on its own would a powerful antidote to the zoning that the RMA has entrenched -- perhaps the strongest possible antidote to zoning there is. Supplementary to putting property rights in the Bill of Rights, then, ‘Party X’ could promote the reintroduction of the Coming to the Nuisance doctrine for use as an absolute in neighbourhood disputes.
What would 'Party X 'do about the environment? Part 2: 'A Nuisance and a BOR'
- “The principle of ‘coming to the nuisance’ was established (and then sadly in some jurisdictions dis-established); as was the principle of a ‘bundle of rights’ being associated with land, and some of those rights being acquired over time by ‘prescription.’”
Cue Card Libertarianism -- Common law .